YouTube Taking Down Public Domain Works?

from the make-it-stop dept

In the past couple of days I've received emails from two separate people who found that public domain material they put on YouTube was taken down to companies claiming ownership of the work. In both cases, the stories seem pretty ridiculous, and for all the complaining that copyright holders do about how awful it is that they need to "police" their own content on YouTube, it seems like those who are getting hurt are people who are putting up public domain material and getting shut down -- often with little recourse.

The first story comes to us from two self-described "hippies," Haint and Littia, who had put up a video showing some of Haint's works, and used as background music a song by a group called the Psalters, who put their entire album into the public domain so that anyone could do what they wanted with it -- such as using it for background music in a video. However, music licensing company Rumblefish, supposedly uploaded its catalog into YouTube's content ID system -- and apparently (and I'm still trying to figure out how, because no one seems to have a good explanation), the Psalters song is somehow in Rumblefish's catalog. Hence, YouTube took down the video. Apparently others have also been finding their perfectly legal and licensed content taken down thanks to Rumblefish as well, and were told that they needed to call and get Rumblefish's permission to get the content back up.

Haint and Littia note that they can't issue a counternotice, because Rumblefish never sent a DMCA notice which they can counter (Update: to clarify, as explained in the next sentence, they can dispute, but that's slightly different than countering the DMCA notice, and comes with its own problems). The "takedown" was triggered by the content ID match, which still makes things a bit tricky, since "disputing" such things could potentially lead to a lawsuit, so there's a bit of a chilling effect in disputing a content ID match. Poking a big company with a stick where they can turn around and file a lawsuit is a bit scary -- even if you know you're in the legal right.

But... along came everyone's favorite news organization, the Associated Press, and claimed the video was their copyrighted material. Nice of them. Due to at least one other similar incident, Pate's entire account was shut down, and to make matters worse, this apparently happened at about the same time that YouTube switched emails to gmail logins, leading Google to claim that it can't match his email to the email of the account in question.

I'm sure Google and YouTube are trying their best, within the confines of copyright law and various lawsuits, to handle such situations, but it seems like things are a mess -- and more and more users are finding that even if they have what appears to be perfectly legal content, they may face takedowns and even loss of their entire account, with limited avenues for recourse.

Reader Comments

Burden of proof

I think it's time that YouTube et al need to change their application of this cruft to place the burden of proof on the offendees before they take down stuff. IE, if you want YouTube et al to take down content, you have to prove ownership of the content in question.

Re: Burden of proof

Sorry, but by the law, DMCA pretty much puts the heavy burden on the copyright holder to find the violation, and then places the burden of proving otherwise on the user.

For the moon landing stuff, it's pretty easy: if the video used is the "nasa only" video (you know, the video they apparently lost) then there wouldn't be an issue. But if he posted up network news coverage of the event, then that is in fact copyright. Effectively, the moon landing footage may be in the public domain, but not the network news presentation of it.

As for the Psalters, I would say that the issue may be that they granted certain rights to Rumblefish, and also issued contradictory "open source" license to everyone. Without knowing the details of each license, there is little to do here. The error may in fact lie with the band or their management / rights holders. We don't know, so it's a big jump to go off on Youtube as a result.

Re: Re: Burden of proof

"Sorry, but by the law, DMCA pretty much puts the heavy burden on the copyright holder to find the violation, and then places the burden of proving otherwise on the user."

Absolutely, but isn't this instance a little murkier due to the fact that no DMCA takedown notice was issued? It was matched by Youtube's content ID, and my understanding is that there isn't the same provisions for challenging a takedown with that method as with a traditional DMCA notice.

"Effectively, the moon landing footage may be in the public domain, but not the network news presentation of it."

That was what I was thinking as well.

"The error may in fact lie with the band or their management / rights holders. We don't know, so it's a big jump to go off on Youtube as a result."

I don't agree. I think the "big jump" was in YouTube summarily taking down content when there is clearly something fucked up going on. This is one of the problems with the way things like the DMCA are written: because it's written to lend deference to the rights holders, companies like YouTube just start treating EVERY situation with that deference. There is no reason why, in this instance, that video should have been taken down. They should have sorted out who did what and why there was confusion and THEN made their decision.

YouTube apparently wants to act first and think later, leading me to believe they have been attending motivational speaking sessions by Dubya....

Re: Re: Re: Burden of proof

The Youtube ID system would mean that the song is already on file as having been DMCA'ed before or provided as a list of copyrighted material. YouTube doesn't randomly add songs to the list for fun.

YouTube is doing what is required: Remove first, restore is proven otherwise. That is the part that is the burder on the end user (non-copyright holder). If they cannot show legal use, they cannot get it restored. It's a pretty simple concept.

Re: Re: Re: Re: Burden of proof

"The Youtube ID system would mean that the song is already on file as having been DMCA'ed before or provided as a list of copyrighted material. YouTube doesn't randomly add songs to the list for fun."

So basically what is listed has already gone through a DMCA takedown request? If that's the case, then it makes more sense. However...

"YouTube is doing what is required: Remove first, restore is proven otherwise. That is the part that is the burder on the end user (non-copyright holder). If they cannot show legal use, they cannot get it restored. It's a pretty simple concept."

While you're absolutely correct that they are following the guidelines, is this really the best way? I guess the simple question when it comes to civil matters like infringement and enforcing those matters is: which activity causes the least amount of harm. So is there more cases of actual infringement that wouldn't be taken down immediately if we did things differently, or is there more abuse of DMCA by rights holders with the way we do them now.

Seems to me that the answer to that question ought to tell you which course of action is best. I don't know that answer, nor do I know how to GET the answer.

Re: Re: Re: Burden of proof

Pay attention - the video is not copyright in and of itself, but anything that the network added would be. So if he used the ABC broadcast of the moon landing, or example voice overs from ABC broadcasters, then there is an issue of copyright.

As I said, it's only public domain if it's the original NASA video. Everyone else's use of and additions to it are NOT in the public domain.

Re: Re: Re: Re: Burden of proof

The video itself is still Public Domain, it does not matter if it is pulled from a news source. The audio may be covered by copyright, but if there is no audio, you cannot claim the video.

Slapping a logo on the video does not put it under copyright. So even if it has a ABC watermark, it is not a Copyright under ABC.

ABC does not have any video that was not shot by NASA, I imagine. It is not like they had thier own cameras up there shooting it. (And hey, if they did, wow.) If they showed footage from someone other then NASA and that was what was put onto Youtube, again, that is NOT ABC's to take down. (Unless ABC purchased the copyright along with the footage I guess, but moving on.)

The only way ABC could fairly claim the footage, is if they shot any part of the on-Youtube footage themselves.

Re: Re: Re: Re: Re: Burden of proof

Sorry, but example: Any graphics, logos, etc. Any overlays "man lands on moon". Any commentary. Anything over and above the pure NASA video is covered either by copyright (content) or trademark (logos). As he isn't able to seperate one from the other, he would have to go to another source to find the original video.

Re: Re: Re: Re: Re: Re: Burden of proof

Bah. So you are saying if there WAS audio, and the audio was stripped, the entire thing is copyright? And if there was an ABC Logo in the bottom, and it was painted over, it is still trademark?

By that logic, if I reprint a DVD with a gold border around the image, I can claim ownership of all copies of that movie. You cannot PROVE you didn't crop the boarder, thus you are infringing. Doesn't matter if the INNER part, the part you are showing is copyrighted, I made a easy to remove modification and now it is MINE! MINE!

Simply, no. Yes, showing the ABC logo may be a trademark. However, claiming copyright over a factual statement about the video? The creator of the font would have more valid claims then ABC on such an overlay.

A dubbing over the video may qualify for Copyright. Then again, if it is from a news source, it should be FACTUAL information. Besides which, only the AUDIO would be covered, not everything. So recording silent should cover that.

Re: Re: Re: Re: Re: Re: Re: Burden of proof

Re: Re: Re: Re: Re: Re: Re: Burden of proof

No, what I am saying is that the network VERSION of the video is copyright to them, only to the extent of the material they added.

Think of it like software. You take an open source product, wrap it inside a bigger product, and sell the product commercially. The bigger product is copyright, even though there are some parts that may not be. If you can pull the part away from the whole, you are free to use it.

The video, which might have commentary, graphics, annotations, lower 3rds, subtitling, or other material that was added by the network, example, would make that as a whole copyright. It doesn't mean they own the NASA video, just that this version with their additions is copyright to them. It does not mean that they can stop people from using the stock NASA footage, but they can control how their finished product is used within the boundries of fair use.

It's a simple concept really, which is why I am confused why anyone doesn't get it.

Re: Re: Re: Re: Re: Re: Burden of proof

Bah. So you are saying if there WAS audio, and the audio was stripped, the entire thing is copyright? And if there was an ABC Logo in the bottom, and it was painted over, it is still trademark?

By that logic, if I reprint a DVD with a gold border around the image, I can claim ownership of all copies of that movie. You cannot PROVE you didn't crop the boarder, thus you are infringing. Doesn't matter if the INNER part, the part you are showing is copyrighted, I made a easy to remove modification and now it is MINE! MINE!

Simply, no. Yes, showing the ABC logo may be a trademark. However, claiming copyright over a factual statement about the video? The creator of the font would have more valid claims then ABC on such an overlay.

A dubbing over the video may qualify for Copyright. Then again, if it is from a news source, it should be FACTUAL information. Besides which, only the AUDIO would be covered, not everything. So recording silent should cover that.

Re: Re: Burden of proof

Answer me this: Can the Associated Press or anybody else claim copyright on the public domain by way of using or quoting something that is in the public domain? Can they extend their copyright back to the public domain source, just because they published/used it?

Re: Re: Burden of proof

i'm in psalters and write most of the music. all of our releases (dating back to 1996) have always expressly stated "all songs public domain, no rights reserved"
We fully expected companies to abuse this....if we ever made music people listened to.....a handful of people do...and so a handful of companies over the years have abused our refusal of rights. I was prepared for folks like rumblefish to claim to own our stuff. That is the land we live in.
We never heard of or granted anything to rumblefish or anyone else. When folks ask to use our stuff we simply respond "do what you want with what you want"...we have never registered or dealt with anything in a formal manner...even when our stuff is used by large publishers or movies etc......we just tell them the same thing we tell the random kid behind a computer. we don't deal with companies or contracts, and have certainly never dealt with rumblefish. This stuff will happen.
There are a few cases where download sites have actually had the audacity to charge money for our music....as if they incurred a cent of expense. I guarantee we don't see any of that. The positives of doing things the way we would like have far outweighed the annoying consequences of dickish folks like rumblefish. As for youtube.....many folks have posted our music without any rumblings from various fish...so i would say just put it up again and know that ultimately you are not in any legal danger....and will always have our untrademarked, unbound, unregistered, uncopyrighted, unenfringed thumbs up! .....unless you use it in a shitty or hippie way (i hate hippies!)

Re: Burden of proof

It's amazing how intellectual property laws cause so much damage. Without intellectual property laws we won't have these problems. But intellectual property laws and the cost of litigation make it less costly to simply take down public domain content than to investigate the issue and take down the content only after it's shown to be infringement leading to the possibility that a lot of public domain content will be taken down. But that's what intellectual property maximists want. They want to be bale to remove any content that competes with their content or at least make competing content more expensive. Public domain content is free content that competes with their content so of course intellectual property maximists, being that they have no regards for morality and never have, are going to act in this manner.

Copyfraud

There ought to be a law against claiming copyright fraudulently. The penalty should include paying reasonable legal costs of the defendant, and there should be a possibility of punitive damages if the claimant knew or should have known that they were making a false claim.

Re: Copyfraud

Well, the precedent has been set. For individuals, $80,000 per song. What does the thing at the start of movies say? isnt it about 10x for corporations? just apply their own laws on them, if they incorrectly claim copyright on something they dont own, they can be hit for damages. of at least $80,000 per song/item.

Re: Copyfraud

For the media..

the law is whatever they think it is and convince a judge or the YouTube people, or whoever of it. They don't give a rat's tushie about Public Domain or anything like that. If they claim copyright they feel it's theirs, plain and simple.

Creative Commons

This is the first time I've heard of a case where a "Creative Commons" license would be valuable. A CC license would allow Psalters to go after Rumblefish for commerical infringement (can't think of the legal term). They probably can't now, because they put their stuff in the public domain.

The bottome line is, Psalters put their music out for free, so that they would get exposure. RumbleFish is limiting that exposure. That should be grounds for civil and criminal action.

What do you think, Mike? Make a new CC license, no attribution necessary, Derivative Works allowed, commercial allowed, distribute with any license you like, but no copyright claims?

Re: Creative Commons

An explanation of how that match might have been made

When something's in the public domain, that original work is in the public domain. However, derivative works may be created and copyrighted. Take for example the various versions of Fritz Lang's Metropolis - available in the public domain. Various re-edits and re-masters? Copyrighted.

Perhaps someone took the music in question, made some kind of derivative work (say, ran it through software filters for compression and limiting, and branded the result a 'remaster') - this new work is potentially copyrightable.

I'm not sure exactly how much modification needs to be done before you can qualify your work as different enough from public domain to warrant its own copyright. In the case of the really nice Metropolis remaster, I can understand why there's at least some level of legal copy protection - a lot of work went into that, and the costs should be recouped.

Copyrights are just plain copywrong

"Fritz Lang's Metropolis - available in the public domain. Various re-edits and re-masters? Copyrighted."

Simply bizarre. One of the main complaints copyrights holders have is that everyone wants to freeload. It seems that with this example freeloading is exactly what the copyright holder does.

I think this is my general problem with copyrights in the first place. They cannot get were they are without "borrowing" from the culture around them, but no-one can borrow from them. Double standards abound.

Re-masters!?? Ohh, I re-sampled the original soundtrack at a higher bitrate, now I can claim copyright. Pretty pathetic in my book.

Re: An explanation of how that match might have been made

In the case of the really nice Metropolis remaster, I can understand why there's at least some level of legal copy protection - a lot of work went into that, and the costs should be recouped.

That is NOT what copyright is for (in the US). As defined by the Constitution, it is for the purpose of encouraging creation. If that remastering would not have happened with the ability to copyright it, perhaps it's appropriate. Otherwise, copyright is being used for an inappropriate purpose.

Re: An explanation of how that match might have been made

So, wait, if the original Public Domain version sounds to much like the 'Remastered' version under copyright, the Remastered does not lose the copyright for not being a new work, rather, the remaster now gets to own the original work too?

Re: An explanation of how that match might have been made

So, wait, if the original Public Domain version sounds to much like the 'Remastered' version under copyright, the Remastered does not lose the copyright for not being a new work, rather, the remaster now gets to own the original work too?

So of all the lawyers that AP and Fox use (seemingly more than actual reporters), not a single one understood what public domain content is.

Its even more outrageous that AP can say they have rights on NASA broadcasts that are explicitly in the public domain. I suppose NASA should punish AP by telling them that anyone BUT the AP can use their footage.

Takedowns

The footage in question was as pure as the driven snow. I got up early and recorded the NASA coverage live and broadcast it within a few minutes - the time it took me to convert to flv. I'm a space nut and had been covering the run-up for days. I was posting stuff to YouTube of the pre-ample, last 10 minutes and last 3 minutes. All public domain.

Over at Expecting Rain we have been following the takedown and suspension of Bob Dylan videos - a barometer of life on the web by Web Sheriff.

I had Getty Images comes after me for a series of photos that I took in New York City a while back. They claimed copyright on 8 or 10 of my photos saying that I was posting their un-watermarked images on my Flickr account and claiming copyright. Little hard for them to explain why I alone, not them, held the original RAW images with the serial number of my camera body in the EXIF data. All of a sudden, they didn't want to discuss that matter any further. No apology, no nothing. They just went away. Ridiculous. These blind takedown notices need to be curbed. Unfortunately, someone is going to have to sue one of these entities for that to happen.

It's time.

Time to move on to a different video hosting site.

As soon as something gets popular, greedy corporate whores wrap their grubby fingers around and squeeze the life out of it... then try to make money from it... and if they can't to the latter, then they try to shut it down. Rinse and repeat.

I've been moving away from Youtube now since less-frequently used sites like Viddler and Google Video still have content up even after it's removed from YouTube.

Is this some ploy

A massive boycott of Youtube over these practices might help. Youtube can be stopped this way, as unlike a buisness, they don't sell a "good" so to speak.
Traditional boycotts often fail due to the sheer number of physical locations. Since in the case of Youtube there is only a single virtual location, the effect would be much more apparent, even if only a small percentage of the overall "viewers" participated. Youtube might stop the BS if their ad revenues drop low enough for a few days/weeks.
A virtual "screw the tube" campaign might be the place to start. Greedy, sniveling, pawnish Youtube needs to be schooled.

Re:

So... punish Youtube for obeying a bad law? You know, nothing would come of that, it is a bad law. Youtube is following the law. Protest the law. Protest the actions of the studios or content owners. But protesting against someone who follows the law because you dislike the law? Bad idea.

AC: There are numerous reasons to go after Youtube, especially if they're going to continually piss on themselves, and their content creators, while wearing
a blinfold as to the reasons. They also have plenty of sway to tell the parties causing all the trouble to back off, but won't. It isn't out of fear, but out of lazyness and confusing, and inconsistantly applied standards. The redress process needs to be corrected. If you could READ twit, you might also notice that at least in one case, DMCA (WHICH DOES NEED TO BE REWRITTEN, IMHO) was not the culpret.
This is the same nonsense as the ebay take down awhile ago. If you don't see the pattern, then you and the youtube folks must be sharing the same blindfold.

Take Down Notices

There is another important distinction. If there is a DMCA take down notice, the content-uploader has rights pursuant to the DMCA. "If someone sends a notice to the provider, knowing that the notice is a material misrepresentation, resulting in the wrongful removed of content (or if the poster sends a wrongful counter notice), the injured party has certain rights (recovery from the ISP is not one of them). [Diebold] The wrongful actor may be liable to the injured party (including the provider) for resulting damage including costs and attorney’s fees. [17 U.S.C. § 512(f)] Note that individuals seeking damages under this section will have two challenges:
* establishing that the illicit notice was provided with knowledge that it was errant [Arista] [Rossi] and
* establishing damage (if the local youth soccer club's website is taken down for a week due to an errant notice, what is the quantifiable damage)."

Content ID Match

Haint here. Like the article said, this is not a DMCA take down notice. It is a Content ID match. The video is not removed, taken down or muted. The notice states in part"Your video MAY (emphasis mine and the whole point of this discussion) include content owned or licensed by the following content owners" and "No action is required on your part." and "In some cases ads may appear"
(A screenshot of this notice can be found at http://cybertrips.blogspot.com/)
The notice does not claim ownership - just a match with something they own or license and takes control of the moneitzation of the video.
These content id matches can be because the content in their catalog is matched to videos with content:
1) in public domain
2) resold by a reseller who bought it from rumblefish
3) used with artist/owner] permission but rumblefish also has a license to distribute same content

This is an error - not coming down on YouTube (we've heard it happening on Vimeo) or Rumblefish.
The system needs a little de-bugging.
Meanwhile, we will just let it be - until/unless there is a move to assert rights over the video such as monetzation.

Re-read Feist v. Rural Telephone

Much of this discussion is based on rubbish. E.g.:

I'm not sure exactly how much modification needs to be done before you can qualify your work as different enough from public domain to warrant its own copyright. In the case of the really nice Metropolis remaster, I can understand why there's at least some level of legal copy protection - a lot of work went into that, and the costs should be recouped.

Under US law, it does not matter how much effort/time/money went into a re-arrangement of an older work -- the new copyright consists only in those new (minimally) creative elements. There is no "sweat of the brow" doctrine in US copyright law.
The new copyright adheres to the new arrangement, and does not extend to the old footage. And a non-creative addition (e.g. digitally remaster or format shift) does not create a copyright, no matter how much effort it takes.
Re-read Feist. And understand it.

Public Domain

I had a fairly popular account with Youtube called MSPaintnerd with 206 subscribers that featured public domain movies. The account was taken down by Youtube because of some bogus claims. The last "copyright violation" was about Alice and Wonderland from 1903. ANYTHING prior to 1923 is in public domain unquestionably. Anybody who knows anything about public domain is aware of this yet Youtube took down my account and basically gave me know recourse. You can still watch all my movies (over 100) at mspaintnerd.com.

nintendo ds r4 says

Thanx for the valuable information. The bigger product is copyright, even though there are some parts that may not be. If you can pull the part away from the whole, you are free to use it. keep posting. Will be visiting back soon.

follow up to my post from ten minutes ago

i just got a call from rumblefish. Apparently this doesn't really have anything to do with us listing our music "public domain" ....in this case it is simply a matter of a software filter mistakenly flagging audio....in this case....our audio. It reads sound files and not the data attached....so it could have been copyrighted correctly, or what have you, and not made a difference. They said the video in question, which i have never seen, can be reposted or unflagged or whatever.
So perhaps rumblefish is not "dickish" but just has bad software. I believe them.
But in general the complaints we all share remain valid....and for me personally i think the response does too. If you don't like the copyright world...then live and relate in a way where it doesn't much affect you.

GoDigital and YouTube monetizing

GoDigital Music Group makes MONEY with its program AdShare. They have a fishing program that tries to match music to see if it is copyrighted/licensed. But on the GoDigital website they claim they may not even own the copyright or license. They say their YouTube notice that a user "may" have violated a right "may" be a mistake.

They ask the user to send them a URL of the video so they can check if the warning was a mistake.

They have a computer program that may or may not be able to match audio content. They may or may not have any legal connection to any or all of the content (audio in a YouTube video). BUT after they identify an audio portion of a file, they get to post an AdShare in the upper right hand corner of any video their computer program detects "may" or "may not" be a copyright/license violation.

These people at GoDigital are making money off ads they place by blackmailing YouTube posters. They say their detection system can make mistakes because there is no central clearing house for all music/audio content.

GoDigital... where does the money go?

On GoDigital, I don't really think a dime goes to the music producers and it is just another way to justify to place ads and make money. Of course some people are getting paid but not the artists definitely. Sigh...

had the same issue with NIN Ghosts

I had the same issue with some tracks off the NIN Ghosts album. It was released with a Creative Commons BY-NC-SA license, and yet these guys still claimed "copyright" over it and I got the warning email from youtube.